A U.S. judge yesterday threw aside a much-anticipated trial between Apple (s aapl) and Google-owned Motorola Mobility (s goog) over smartphone patents. The decision and a blog comment by the same judge could prove to be a watershed moment for a U.S. patent system that has spiraled out of control.

In his remarkable ruling, U.S. Circuit Judge Richard Posner stated that there was no point in holding a trial because it was apparent that neither side could show they had been harmed by the other’s patent infringement. He said he was inclined to dismiss the case with prejudice — meaning the parties can’t come back to fight over the same patents — and that he would enter a more formal opinion confirming this next week.

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The order is extraordinary not only for what it said but for who wrote it. For the unfamiliar, Richard Posner is a legend in legal and academic circles and possesses a resume that makes the typical Supreme Court Justice look like a slouch. He teaches at the University of Chicago and ordinarily sits on the influential 7th Circuit Court of Appeals but, in an unusual development, was assigned to a lower court last December to hear the Google-Apple patent case.

The case is just one of many patent disputes tying the legal system in knots as large companies tangle not only in court but at the International Trade Commission in an effort to ban each others’ products from the market. Critics say the patent system, which awards 20-year monopolies, has run amok thanks to a flood of questionable patents for software, business methods, emoticons and even one for “swinging on a swing.”

In a series of earlier rulings in the Apple case, Posner didn’t mince words as he used plain language to beat up the over-reaching arguments of both sides:

[re a slide-to-unlock patent] Apple’s .. argument is that “a tap is a zero-length swipe.” That’s silly. It’s like saying that a point is a zero-length line.

Motorola’s contention that the term has a “plain and ordinary meaning” is ridiculous; Motorola seems to have forgotten that this is a jury trial.

In his ruling to dismiss, Posner noted that a trial would “impose costs disproportionate to the harm … and would be contrary to the public interest.” Posner’s cost-benefit assessment is likely rooted in a worldview anchored in law and economics — a Chicago-school of thought that equates court decisions with maximizing efficient economic outcomes.

This week, Posner also lashed at the patent system in a blog he shares with economist Gary Becker. In a post about the declining strength of American institutions, he concluded:

The institutional structure of the United States is under stress. We might be in dangerous economic straits if the dollar were not the principal international reserve currency and the eurozone in deep fiscal trouble. We have a huge public debt, dangerously neglected infrastructure, a greatly overextended system of criminal punishment, a seeming inability to come to grips with grave environmental problems such as global warming, a very costly but inadequate educational system, unsound immigration policies, an embarrassing obesity epidemic, an excessively costly health care system, a possible rise in structural unemployment, fiscal crises in state and local governments, a screwed-up tax system, a dysfunctional patent system, and growing economic inequality that may soon create serious social tensions. Our capitalist system needs a lot of work to achieve proper capitalist goals.

Posner’s decision to descend from the 7th Circuit to oversee the Google-Apple trial suggests he wished to step in and do something directly about the patent system. (Ordinarily, Posner would never hear a patent case as all patent appeals are sent to the DC-based Court of Appeals for the Federal Circuit; that court has maintained an ideological bias in favor of patent owners despite repeated rebuffs by the Supreme Court).

The backlash against the misuse of patents is coming not just from Posner and the Supreme Court but other federal judges as well. Judge James Robart blasted Motorola and Microsoft in Seattle last week, noting that “The court is well aware that it is being played as a pawn in a global industry-wide business negotiation.”

It’s unclear how Apple and Google will respond to Posner’s surprise pounding of them. Both companies have so far said nothing and may be waiting for the other shoe to drop via Posner’s formal opinion expected next week. The judge wrote yesterday that he may change his mind but the overall tenor of the first opinion suggests this is unlikely. You can decide for yourself here:

Its about time someone shutdown these suits that only harm the public interest by stifling innovation so that a company can monopolize programming ideas that equate to the complexities of opening a mouth in order to speak a word. Most of these ideas have been around since computers were first thought about but no one back then was stupid enough to think they could own the ideas and that no one else could use them.

We could save a lot more money by abolishing the police force and closing down the prison industrial complex. Most crimes are non-violent to begin with and minorities are disproportionately affected overall.

So now Posner has decided to add a dysfunctional court system, to his list of problems with the U.S.? It seems like Posner is just trying to get out of doing the hard work a trial judge is supposed to do, by “short circuiting” the whole process. He must “give them their day in court.” That is a basic right of all U.S. citizens — the opportunity to have our day in court. If, during the trial process, AFTER HEARING ALL THE EVIDENCE WITH A NEUTRAL FRAME OF MIND, he wants to steer the process more quickly (and therefore more efficiently) to a conclusion, that would seem to be a laudable goal.

“proper capitalist goals”? That’s the funniest thing I’ve read today. None of the problems on Becker and Posner’s list is necessarily a problem from a capitalist’s perspective.

capitalist (noun): a wealthy person who uses money to invest in trade and industry for profit.

Suppose I’m an American capitalist (I’m not, but play along with me). Should I care that, for example, America has “a very costly but inadequate educational system”? I send my children (if any) to private schools. More to the point, my resource-extraction or product-manufacturing operations don’t require highly educated workers. And besides, years ago, I moved all that to poor countries with pliable governments, where I can easily afford to train the workers in exactly what they need to know to make me richer. True, if they come knowing how to read and write, that’s nice, but I really don’t need, you know, rocket scientists, and I’m not looking for critical thinking either. I do need a few better educated people to manage everything, but these days, I can find them in lots of countries besides this one, and they’re cheaper in Mumbai or Shanghai anyhow. So if I care about the sorry state of American education, it’s not because it matters to me as a capitalist but because I’m patriotic or compassionate or some such thing – in other words, it’s because I’m an imperfect specimen of Homo economicus.

And that’s true down the line. Solutions to the problems Becker and Posner lament aren’t capitalist goals, they’re human and social goals, whose attainment is to a substantial extent at odds with the nearly unbridled pursuit of myopic self-interest known as capitalism.

Unfortunately, this looks like “too easy”. The judge basically says that it is the companies’ job to negotiate, not the court’s. But as long as the need to negotiate is established by patent laws, it is the job of the courts to uphold the law when called upon.

This pest can’t be ended by common sense. It requires changing the law, and the judge pretending otherwise is just wishful thinking about his job description.

I think you’re mis-interpreting his blogpost based on your own biases. The “dysfunctional patent system” is probably a comment on the organizational problems of the USPTO (i.e. it being understaffed and overloaded) rather than any inherent flaws in the patent system itself (e.g. what many think of the on-going patent lawsuit war). From what I’ve seen, judges and jurists tend to accept that the patent system is practically sound, and any complaints they make about it tend to be about the bureaucracy and inefficiencies of the USPTO. Especially since this judge is a very strong supporter of capitalism (in the linked blog itself), I’d guess that he’s also a strong supporter of intellectual property rights.

I think you’re mis-interpreting his blogpost based on your own biases. With references to environmental issues, education and immigration one could easily assume he’s of a liberal political persuasion and would thus want an active government role to offset the extremes of capitalism. Either way it seems a bit presumptive to me.

I really hate the abuse of the term liberal to mean social. There’s the scale of libertariantotalitarian, and socialcapitalist, but they are different dimensions. Liberal is so abused as to be meaningless.

Well, I did qualify my guesses with a “From what I’ve seen” :-) It’s just that my biases are colored by reading jurists’ writings about patent law, whereas the article’s author’s biases are colored by the widespread media reporting about patent lawsuits (and the horribly mis-informed reporting about patents that goes with it). The jurists I’ve read tend to be pro-patent and debate legal theories rather than economic ones, but then there may be some selection bias there.

However, I did a little research about Judge Posner’s other writings and he seems to have taken very balanced stances on copyrights and IP, trying to balance IP-holder rights with costs to society. It’s almost like he’s an economist more than a Judge. Here’s a particularly telling one: “Do We Have Too Many Intellectual Property Rights?” (Google it.) The title is linkbait-y and he gives no definitive answer, but towards the end he briefly mentions an overly pro-patent CAFC, resulting in dubious business method patents and trolls, as the problems he sees with the patent system. So my guess was off; he does have a more encompassing view than jurists I’ve read.

Well, I did qualify my guesses with a “From what I’ve seen” :-) It’s just that my biases are colored by reading jurists’ writings about patent law, whereas the article’s author’s biases are colored by the widespread media reporting about patent lawsuits (and the horribly mis-informed reporting about patents that goes with it). The jurists I’ve read tend to be pro-patent and debate legal theories rather than economic ones, but then there may be some selection bias there.

However, I did a little research about Judge Posner’s other writings and he seems to have taken very balanced stances on copyrights and IP, trying to balance IP-holder rights with costs to society. It’s almost like he’s an economist more than a Judge. Here’s a particularly telling one: “Do We Have Too Many Intellectual Property Rights?” (Google it.) The title is linkbait-y and he gives no definitive answer, but towards the end he briefly mentions an overly pro-patent CAFC, resulting in dubious business method patents and trolls, as the problems he sees with the patent system. So my guess was off; he does have a more encompassing view than jurists I’ve read.

Thanks for the comment, kinkfisher. My own two cents is that Judge Posner is suggesting the dysfunction runs deeper than just the patent office. While the USPTO does suffer a lack of resources, it’s reductionist to hang blame for the runaway patent system on a single office. I would argue the patent bar, the courts, private equity (which is funding many patent trolls) and Congress – which blew last year’s attempt at reform -are also to blame. The problem is exacerbated by an American psyche that treats the word “patent” as synonymous with virtue and invention.

I replied above. You’re right that the Judge thinks the problem is beyond the USPTO (he seems to pin it on the CAFC and the political climate that resulted in its formation). Regarding the perception of patents, while there certainly are many dubious patents out there, my own experience reading tons and tons of other patents is that the average quality (selection bias notwithstanding) is pretty decent, certainly much better than what the average blog reader perceives. This skewed perception is mostly because tech media reporting invariably oversimplifies the patents being litigated into 1-line blurbs, making them seem ridiculously broad and trivial. In other words, in my opinion, most patents *do* cover actual inventions and do merit some virtue.

Agreed. And while I appreciate kinkfisher’s willingness to investigate and report back on Judge Posner’s stance and acknowledge his previous error in interpreting that stance, I’m afraid kinkfisher is on the wrong side of this debate about the state and value of modern patents as well. As someone who holds nine US and world software patents, for Apple, I can tell you unequivocally that such software patents are a waste of Apple’s and taxpayers’ money. Yes, I like to think the ideas were innovative, but even the most ardent of patent enthusiasts will acknowledge that ideas are not patentable. So the patent applications are drafted as an instantiation of those ideas, and magically they become patentable. Never mind that short of invasive and extremely time-consuming inspection and analysis by true experts of a rival company’s source code and practices could infringement be proven, thus making the patents essentially unenforceable. More fundamentally, software is an instantiation of an idea. The software is and should be protected by copyright, but the idea should not be patentable. It is like writing in this regard: Specific prose is copyrightable, but the idea of having a troubled individual commit a murder and a gruff but fair police detective investigate and solve the crime is not, thank goodness, patentable. Software patents are for ideas and are just plain wrong.

I haven’t thought quite as much about it, but I’m pretty sure user interface design falls in this category. Specific implementations should be protected by copyright, but the idea of tapping or sliding or bending over backward to make something happen should not be patentable.

If we could separate out the idea from the implementation and all agree that ideas should not be patentable (which they are not, by law, as best I understand it), a large fraction of modern tech patents would be eliminated, the load on courts would be greatly reduced, the legal needs of tech companies would be lessened, and innovation would have a much greater chance to thrive in high tech industry. IMO.

hi larryy – isn’t the problem that the USPTO doesn’t enforce the “obviousness” criteria? The idea is that you should only get patents for things that are sufficiently inventive that a typical person well-versed in this field wouldn’t have thought of them.
And endless patents are awarded in the area of User Interfaces that fail this test massively.
If someone has a truly inventive idea in UI, one that others wouldn’t think of, why should the patent system be closed to them?

re- larryy â€“ isnâ€™t the problem that the USPTO doesnâ€™t enforce the â€obviousnessâ€ criteria? The idea is that you should only get patents for things that are sufficiently inventive that a typical person well-versed in this field wouldnâ€™t have thought of them.
And endless patents are awarded in the area of User Interfaces that fail this test massively.
If someone has a truly inventive idea in UI, one that others wouldnâ€™t think of, why should the patent system be closed to them?

You may have missed the point Rashid. It’s likely you’d only call a point a zero-length line if you were up to something. It’s clever word smithing to warp the otherwise logical outcome. If I wanted you to point to something on the screen it’s unlikely I’d tell you to do a “zero-length line on that icon”

I believe Posner is aware of that. Since a tap is somehow a zero-length drag. Then according to that logic, it’s just like how a point is a zero-point line. Which since you aren’t supposed to be able to patent things that are obscenely obvious, Apple shouldn’t be able to patent the concept of a dragging action.

I understand Rashid’s point (sorry, could not resist that) but think Rashid is confusing a functional means of describing an object (which is not the only descriptive means) with the object described by it. And the parties were clearing using the Euclid’s definition of a line (or rather, a line segment, since they were not speaking of infinite length) which obviously differs from his definition of a point. And practically, Apple was saying that tapping and sliding are the same thing, which is so patently (sorry, could not resist that either) ridiculous that it insulted the court, as it would have insulted a jury.